Gift deed of joint ownership to children

A lady wishes to gift her house to her daughter and son in equal proportions.
The lady holds clear title to this self-purchased house from govt of india.
In order to save her children from harassment by legal system and property officials after her demise, she is considering to gift deed the house, instead of writing a will that would require a court to be executed probated etc, when the time comes.
Questions...
Can this joint ownership through gift deed be a source of fight and tension between the children after the lady's passing away?
What kind of joint ownerships can be created for the siblings in a gift deed, so that no scope of fighting is possible.
For example, if after the lady's passing away, if one sibling wants to sell the house and split the money, and the other sibling does not, what happens in this case? How can this be resolved?
The lady is apprehensive that her daughter, who is a bit ambitious, might try to capture her brother's 50% share of the gift deed, if she can. By using any loopholes of laws relating to joint ownership, or laws of succession, or any other laws, if possible. Or if any mistake happens during execution of gift deed.
If the gift deed clearly says son and daughter get equal share of the house, can there arise any ambiguity? Wouldn't each sibling's 50% share as mentioned in the gift deed be legally autonomous?
Please provide your valuable opinion on this situation, and if you feel any other legal instrument should be execcuted along with this gift deed, to ensure that the sister cannot find any opportunity to capture her brother's 50%, please mention it.

Asked 1 year ago in Property Law from Delhi, Delhi

Religion: Hindu

1) gift deed is ideal solution . it attracts nominal stamp duty and registration charges
2)since both would be joint co owners of property it should not cause any heartburn among children
3) in case on demise of mother one sibling wants to sell the house other should exercise right to buy other sibling share in property . in any case under section 44 of transfer of property act co owner can sell his share without consent of other co owner
4) if lady does not trust the daughter she should execute gift deed only in favour of her son and give daughter fixed deposits or other movable assets of equal proportion

1. Probate is not mandatory except in a few select cities.
2. The gift deed can always be challenged on the ground that it was executed by the donor under duress or undie influence of either donee. It is not beyond the pale of a legal challenge.
3. Since the mother proposes to gift the property in equal proportion to both children she should first partition the property and then gift separate shares to both her children. An undivided property gifted by mother can be the source of litigation between children.
4. Last but not least, get a flawless deed drafted by a lawyer.

In the case of Joint ownership property a co owner can sell his share without consent of other co owner. If the lady does not trust her daughter then she may execute a Settlement deed in favour of his son and handed over the right in the property when the lady was live. The same time kept the life estate of the property in her name to safe guard her usage.

1. Since the gift deed takes effect from the date of execution so as long as their respective shares are duly demarcated in the deeds there is no chance of dispute.
2. If you transfer half to your son there is no way she can usurp his share. However to be on safer side deliver physical possession of half share to your son as well.
3. It is perfectly all right. However to remove the dispute demarcate the respective shares by actual boundaries.
4. Focus on physical demarcation and delivery of possession.

Dear Querist
it will be better to executed a conditional gift deed in favour of son and daughter and in this deed all the terms and condition should be mentioned regarding the shares of each of them.
secondly, the owner of the property, if think about the future that in future if any one wants to sell the share then the owner may imposed a condition that the person interested to sell the property will sell the share first of all to other share holder as per the market rate or as per amicably agreed by both of them otherwise to third party, it may also be possible that in case of sell the share by the one party, that gift deed may be cancelled for that person.
The conditional gift deed or Will may be draft by the lady(owner of the property) by her own wish and on terms and conditions as she wants.
Feel Free to call

Many thanks for your enlightening responses. Please bear with me as I am slow to understand such legalities and some of the below text may be a repetition of what I asked earlier.
The house is constructed in such a way that it is impossible to make physical division boundaries without making the entire building useless and nonfunctional.
And if one sibling gets first floor the other gets ground floor, who owns the plot on which the house stands? And what if resale value of first floor is different from resale value of ground floor. That is a problem. Plus all water connections electrical connections are joint and based on ground floor only. So if some third party buys first floor, he will have no control over water and electricity boards. Buyer of first floor might not want to buy, if he knows of these problems.
And...the thing is that brother does not want more than 50% but he is apprehensive that sister will try to find ways to force him to hand over his 50% to the sister.
This apprehension is not unfounded because one uncle has been suggesting to the mother of the two children, to give everything to the daughter and nothing to the son.
It is an expensive house and the mother does not have enough cash to give cash equivalent of 50% of house to sister, like suggested by one of you.
The son wants the end of this nonsensical headache controversy, but of course does not want his 50% to be jeopardised or blocked in any way after the passing away of mother.
One of you did mention a conditional will. What is that? Can you, once again, giv me an idea of what could be written in the conditional will, so that there is no scope of any trouble as mentioned.
The son just wants his 50%, no more. And no headache.

Asked 1 year ago

Can this joint ownership through gift deed be a source of fight and tension between the children after the lady's passing away?
What kind of joint ownerships can be created for the siblings in a gift deed, so that no scope of fighting is possible.
Transferring the properties to children by executing a registered gift deed is a good idea, but remember that the transfer shall happen immediately and the donor have to lose the rights in the properties and the properties itself. If the transfer was executed in the joint names both shall be the joint owners.Once the property has been acquired jointly by both the owners during the life time of the donor, i.e., mother what or how any problem can arise in the future. Also how can one predict future, but please note that the quarrel cannot be predicted nor there is any suggestion available for an event that has not taken place.
The lady is apprehensive that her daughter, who is a bit ambitious, might try to capture her brother's 50% share of the gift deed, if she can. By using any loopholes of laws relating to joint ownership, or laws of succession, or any other laws, if possible. Or if any mistake happens during execution of gift deed.
If this is suspected, then the lady can partition the property equally to both by a family arrangement or by a settlement deed.
If the gift deed clearly says son and daughter get equal share of the house, can there arise any ambiguity? Wouldn't each sibling's 50% share as mentioned in the gift deed be legally autonomous?
Your understanding is right.

And if one sibling gets first floor the other gets ground floor, who owns the plot on which the house stands? And what if resale value of first floor is different from resale value of ground floor. That is a problem. Plus all water connections electrical connections are joint and based on ground floor only. So if some third party buys first floor, he will have no control over water and electricity boards. Buyer of first floor might not want to buy, if he knows of these problems.
All those questions can be solved by drafting the partition or gift deed mentioning the share individually as well commonly held which cannot be disputed.
The son wants the end of this nonsensical headache controversy, but of course does not want his 50% to be jeopardised or blocked in any way after the passing away of mother.
One of you did mention a conditional will. What is that? Can you, once again, giv me an idea of what could be written in the conditional will, so that there is no scope of any trouble as mentioned.
The son just wants his 50%, no more. And no headache.
If the steps suggested on my previous answer is considered your all problems will vanish and the son can sigh a relief.

1) you can in your will mention that on your demise house would be sold by the executor of will and proceeds split equally between the son and daughter
2) in the event any of the children wants the house he or she should offer 50%of the market price of the house to the other sibling
3) valuation of the house to be done by govt approved valuer

1. The owner of a building is also the owner of the land beneath it, so every co-owner will own the land underneath the house to the extent of his share in the building.
2. To sell the property and distribute the sale proceeds among children will be most effective way to deal with the situation if there is no consensus to divide it.

Indian Laws

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